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«FaOM SAWDUST TO TOXIC BLOBS AConsideration of Sanctioning Strategies to Combat Pollution in Canada STUDIES IN REGULATION AND COMPLIANCE Canada.~ ...»

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The survey was concerned with establishing the attitudes of a national sample of Americans towards the seriousness of crime in the United States. 59 The survey found that respondents rated white collar crime that caused injury to persons 2: extremely serious. 6o When posed with a hypothetical situation in which a factory knowingly disposed of hazardous wastes in a way that polluted the \vater supply of a city and resulted in the deaths of 20 people, survey respondents rated this behaviour as more serious than some other direct and intentional forms of homicide, including stabbing a person to death. 61 Even when this hypothetical pollution situation was changed to one in which 20 people became ill but none required medical treatment survey respondents still regarded the offence as more serious than attempted murder with a gun, or assault with a gun or knife that caused hospitalization. 62 Comparative national survey data of this type are not as yet available for Canada, but there seems to be a growing perception at the political level, both federal and provincial, that the attitudes of Canadians towards pollution and polluters are no longer as conciliatory as they appear to have been in the past. Evidence of the political sensitivity to this perceived change in public mood in Canada can be found in a number of places. 63 The federal Minister of the Environment, for example, in a major speech in October 1986 admitted that concerned Canadians could not "be totally sanguine about progress against polluters in most parts of Canada."64 The Minister went on to make a blistering attack on existing enforcement practices,

stating:

In few other areas of government are sanctions as ineffective as they are in the environmental field. In fact, the most serious white collar crime in Canada today is not embezzlement but, rather, pollution. And almost all offenders are getting off scot-free. The price is being paid, instead, by the rest of society.65

Recent Legislative Developments

Since this speech was delivered, the Minister has unveiled draft legislation that wOlIld effect dramatic chang-es to the reach and penalty structure of the federal Environmental Protection Act. 66 Under this proposed legislation, corporate polluters would be liable to maximum fines of $1 million a day, jail sentences of five years and the confiscation of any pollution-related profits. 67 The courts would also be permitted to award damages to compensate pollution victims for losses of health and property.68 These developments at the federal level were preceded in Ontario by the successful passage during 1986 of new legislation designed to enhance the prosecution, conviction and punishment of polluters. 69 The Ontario Minister of the Environment, when introducing the legislation, noted that it provided for jail sentences and the quintupling of fines for pollution offencec;.7o The Minister stated that these changes were needed because the current penalty structure is little more than a licence to pollute our air, our water and our food chain.... The changes I am introducing today will make it cheaper to comply with our laws than to violate them... The general thrust of this legislation reflects the direction recommended by the Law Reform Commission of Canada. In recent reports, the Commission has viewed environmental protection as a fundamental human value and has advocated more effective sentencing options and tougher environmental laws. I believe the new enforcement structure introduced today will provide appropriate deterrence for offences against the environment in Ontario. 71 Rhetoric or Real Change?

More cynical observers of the political scene in Canada might query the degree to which statements like these represent popular rhetoric rather than commitments to real change in environmental enforcement strategies. 72 They may also create public expectations about the protection of the environment that could prove extremely difficult to fulfil. 73 Nonetheless, it does seem that the LRCC, through publication of WP44 and an associated process of research and consultation, has begun to attract attention to the choice of strategies that may be utilized in regulating the en vironmen t.

If the LRCC's specific proposal to establish a crime against the environment in the Criminal Code were to be implemented, it would become the "ultimate weapon" in a sanctioning strategy that emphasized a penal style of enforcement. Bolstering such a strategy would be laws, like that introduced in Ontario or proposed at the federal level, containing a range of severe penalties with which to punish and deter polluters. The Question remains, however, of whether these developments would result in a less polluted and safer environment than we currently possess. Expressed in another way: Will a shift along the environmental regulatory continuum from compliance towards sanctioning, as is apparently already occurring, assist in the red uction of polluting behaviour? No simple or definitive answers can be anticipated to these questions, but some sense of the relative merits and demerits of different approaches to the regulation of the environment may be obtaiaed from an examination of the socio-Iegal and criminological literature in the area. This paper now turns to this literature.

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A Predilection for Tragedies and Dramas Central to any understanding of the arguments used to justify or repudiate different strategies and styles of environmental regulation is some knowledge of the principal players who inhabit the pollution stage. In the public mind these players and their performances are almost certainly associated with major pollution tragedies like Bhopal, Chernobyl and Love Canal. 74 Crime dramas may also influence public perceptions about pollution, with shadowy mobsters playing roles as "midnight dumpers" of toxic wastes, or ruthless Mafia bosses directing highly polluting industries. 75 Tragedies and crime dramas are, of course, the grist of much of what we call entertainment. It is also the most dramatic and sensational forms of polluting behaviour that typically attract electronic and print media. This attention may even act as a catalyst for reform. 76 But there is substantial evidence that the real roles played by performers in this arena are much more mundane, and that the motivations of those involved are guided principally by economic rather than more sinister aims. 77 This does not mean that the environmental harm resulting from the activities of polluters should be regarded as minimal when they are driven by good capitalist profit motives, or equivalent goals in a socialist state. It does mean, however, that substantial problems can arise when it is sought to label these activities as criminal.





As is well known, much of the behaviour of governments that are involved in regulating in order to control pollution is linked inextricably to the economic wellbeing of a nation and its citizens. 78 Decision making about the nature and type of regulatory control over a particular form of business or industry that pollutes is therefore going to be influenced, almost inevitably, by arguments about the relative priorities that should be given to economic development and environmental protection. 79 The way in which these priorities are formulated and defined, and the process by which regulatory controls are set, are intensely political exercises. 8o Therefore exercises in which the rights of individual citizens, and environmental concerns, are less likely to be as well represented as those of particular sectors of business and industry.81 They are also exercises in which suggestions for the use of sanctioning strategies, and especially those associated with the criminal law, will typically and continuously be resisted by those likely to be made subject to such strategies. 82

Learning from a Sawdust Battle

An appreciation of the gl..neral longevity and nature of the arguments about the appropriateness of different strategies to combat pollution in Canada, and of the politics and practices involved, can be obtained by dipping briefly into the history of the lumber industry. Gillis 83 has produced a recent and fascinating account of the battle by a diverse group of early conservationists to stop pollution of waterways in eastern Canada by sawmill operators. 84 The conservationists waged a campaign from the mid-1860s to beyond the turn of the century before finally obtaining sufficient political support to stop sawdust being dumped in rivers and streams. Much attention focused on the Ottawa River where, within sight of Parliament Hill, lumbermen carried out their polluting activities. 85 So bad did the pollution become by the 1890s that the methane gases given off by the rotting sawdus·t clogging the Ottawa River regularly exploded. In 1897 a prominent farmer was drowned when thrown from his boat by the shock of one of these blasts. 86 The arguments advanced by the combatants in this sawdust pollution battle have a very familiar ring. The lumbermen, in resisting regulation, claimed that their economic competitiveness would be damaged if they were forced to re-invest in remodelling their mills to deal with refuse,87 and the country at large would suffer if they had to close down their businesses. Experts were brought in, and research was conducted, to prove that the damage done by the sawdust dumping was minimal. The conservationists, on the other hand, argued that the mill operators were ravaging the environment to the general detriment of society, and that they were quite wealthy enough to purchase new refuse disposal equipment. 88 For three decades the federal politicians and bureaucrats listening to these arguments adopted a conciliatory style of enforcement towards the powerful business interests represented by the lumbermen. It was not until 1898, following the death of the farmer, that a sanctioning strategy began to be invoked in an attempt to force the lumbermen to install new sawdust disposal equipment in their mills or face shutdown. 89 Even then, the largest mill operator in the country resisted regulation and, in the face of government prosecution, announced he w{)uld pay any fines imposed until an injunction was issued, at which time he would close down his business and throw up to 2,000 men out of work. 9o Eventually, it took the personal intervention of the prime minister of the day, Wilfred Laurier, to obtain a delay in Department of Justice proceedings for an injunction to persuade this particular businessman to obey the regulations regarding sawdust pollution. 91 There is no evidence in Gillis's colourful account of this facet of Canadian pollution history that any attempts were made to prosecute any of the lumbermen, or their companies, under the provisions of the Criminal Code for an offence like common nuisance. 92 Such a prosecution might have been possible, given the danger of explosion created by the sawdust pollution. 93 Nor is there any evidence that anyone involved in the sawdust pollution battle thought of the lumbermen as criminals, even though a citizen's death could apparently be traced to their polluting behaviour. It may nevertheless be instructive that after the obvious and longstanding failure of a compliance enforcement strategy, it was a shift to a penal style that ultimately produced behaviour conforming to the pollution regulations.

Living with Toxic Blobs

Our technology-driven post-industrial society is clearly influenced, and threatened, by a far more complex and forbidding array of polluting behaviours by business and industry than was that of our nineteenth century forbears. 94 Take, for example, the infamous toxic blob, first discovered in August 1985 in the St. Clair River, which forms part of the Great Lakes system bordering the United States.9 5 The blob seems to have originated from an accidental spill of a mildly toxic drycleaning fluid into the river by Dow Chemical Canada Ltd. This fluid picked up contaminated sediment from the bottom of the river, creating a black tarry substance, or blob, containing at least 18 hazardous chemicals including many suspected carcinogens. 96 It soon became clear that this was not an isolated incident and that the Ontario Ministry of the Environment (hereinafter OMOE) had been aware of the toxic contamination of the river since at least 1976. 97 A major study, done by both federal and provincial environmental authorities in 1979-1980 and confirming widespread contamination of the river without significant cleanup measures being implemented, was released to the public in the fall of 1985. 98 The study identified a number of major and potential sources of pollution of the St. Clair River in an area known as the "Chemical Valley" in Ontario and the home of a cluster of multinational petrochemical companies. 99 This study, and the work of investigative journalists, also revealed that between 1972 and 1984 there had been 275 toxic spills reported in the Chemical Valley area, of which more than half had entered the St. Clair River. lOO On only one previous occasion had charges been laid following these spills before Dow Chemical's highly publicized incident in August, 1985. 101 As in the case of the sawdust pollution decades earlier, it seems apparent that the regulatory bodies and governments dealing with a very important and influential industry preferred to adopt a compliance strategy and conciliatory style of enforcement when problems of pollution arose from the manufacture of chemicals. A complex and far from comprehensive legal framework existed for the discharge of pollutants into the St. Clair River. l02 This legal framework was and is complicated further by the fact that the river is an international body of water, faIling within the terms of the Great Lakes Water Quality Agreement signed in 1978 between the Canadian and United States governments. l03 This accord seeks virtually to eliminate toxic discharges into the Great Lakes but contains no international enforcement machinery to achieve this worthy objective. l04 As with other trans border pollution problems like acid rain, the current remedies available to respond to specific polluting behaviour in the Great Lakes lie within domestic boundaries, even though those responsible for much of this behaviour may be multinational companies operating across many international boundaries. l05

Dealing with Corporate Polluters



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